State v. Fowler

• Decision Date: 01 April 1975
• Docket Number: No. 19984,19984
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Stanley Wayne FOWLER, Appellant.

Page 447

213 S.E.2d 447

264 S.C. 149

The STATE, Respondent, v. Stanley Wayne FOWLER, Appellant.

No. 19984.

Supreme Court of South Carolina.

April 1, 1975.

William B. Long, Jr., Long, Black & Gaston, Greenville, for appellant.

County Sol. C. Victor Pyle, Greenville, and Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Joseph R. Barker and Staff Atty. Brian P. Gibbes, Columbia, for respondent.

LEWIS, Justice:

Appellant was convicted of the armed robbery of the cashier in Jordan's Self Service Minit Mart in Greenville County and received a sentence of twenty (20) years. He has appealed, charging that the trial court erred (1) in refusing to exclude the in-court identification by the prosecuting witness because of improperly suggestive pretrial identification procedures, and (2) in refusing a motion for a new trial on the ground of after-discovered evidence. The latter question also includes an assignment of error based upon the refusal of the trial judge to admit into evidence certain police investigative records to support the claim of after-discovered evidence.

The robbery was committed about 4 p. m. on October 19, 1973. According to the testimony of the prosecuting witness, she was about her duties as cashier and clerk in Jordan's Self Service Minit Mart when the appellant entered and, at gun point, made her place the cash in a bag and then made her go into the rest room. She remained there until he left. She saw and observed appellant for about five minutes. When the police arrived, she gave them a description of her assailant, which was an accurate description of appellant, and, according to her trial testimony, later identified him from a group of pictures presented to her by the officers. Subsequently, she identified appellant as her assailant from a one-on-one view though a one-way mirror and from a second view of the pictures. She saw appellant again at the preliminary hearing and positively identified him at the trial as the one who committed the robbery.

Appellant objected to the in-court identification contending that the pretrial photographic identification and one-on-one view of appellant through the one-way mirror were prejudicially suggestive and impermissibly influenced the in-court identification by the prosecuting witness.

The trial judge found that the prosecuting witness had ample opportunity to observe her assailant and reach an independent identification of him from such observations. He concluded that neither the photographic identification nor the one-on-one view, singly or collectively, were conducted in such a manner as to impermissibly or prejudicially influence the in-court identification. The record amply sustains these findings by the trial judge, and the in-court identification was properly allowed. State v. Campbell, S.C., 210 S.E.2d 307; State v. Rogers, S.C., 210 S.E.2d 604.

Appellant also seeks to have his in-court identification by the prosecuting witness suppressed upon the basis of testimony developed at the hearing on the motion for a new trial. The prosecuting witness testified at the trial that her first pre-trial identification was from a group of pictures presented by the officers, the second from a one-on-one view through a one-way glass, the third from a second view of the pictures, and the fourth at the preliminary hearing. However, an officer, who was not present at the trial, testified at the later motion hearing that the witness was unable to identify appellant as her assailant from the first view of the pictures. If this was true, the first identification by the witness would have been the one-on-one view. It is now argued that the one-on-one view, with no prior identification, was unduly suggestive and improperly influenced the subsequent in-court identification.

The prosecuting witness, however, denied that she was unable to make any identification at the first view of the pictures. She testified that, while she did not make a positive identification, she did identify the picture of appellant at the first viewing as probably her assailant. She stated that she told the officers the picture of appellant 'looks like him (her assailant),' but that she was unable to 'swear to it' at that time because of her physical condition from medication.

The foregoing testimony related solely to the credibility of the initial photographic identification of appellant by the prosecuting witness. Of course, the effect of the testimony must be viewed and assessed in the light of its sufficiency to support the motion for a new trial on the ground of after-discovered evidence. The credibility of the identification by the prosecuting witness was in sharp issue at the trial. The present testimony was therefore cumulative and impeaching. As such, it could not be after-discovered evidence.

The subsequent testimony directed to the impeachment of the identification testimony of the prosecuting witness is not, in any event, persuasive of error in the trial judge's determination of the admissibility of the in-court identification. There can be no doubt of the full opportunity of the witness to observe her assailant under such circumstances as to render correct identification most likely. The description given by her to the officers immediately after the incident was an accurate description of appellant, although she had never seen him before. The charge here is that she mistook the appellant for the alleged confessor to the crime. The dissimilarities in the appearance of the two, as shown by their pictures, renders such misidentification, at least, most unlikely. The record...